Articles Posted in Disinheritance

In California, over the years, I have handled many cases involving disputes between family members over the estates of a deceased relative. Brothers against sisters, sisters against brothers, uncles against nieces, nephews and others.  Some cases go to trial; other cases settle.  In all events, however, someone is going to be disappointed with the outcome, which disappointment can occur even if they prevail.

If you have been disinherited, you believe that the instrument that disinherited you was obtained by undue influence or when your deceased loved one (or relative) was incompetent, your recourse is the courts.  Let’s say that you succeed in getting the offending instrument (a will or a trust) thrown out.  What then?

The court may say that if there is no other earlier instrument, the estate will go by intestacy (as if the decedent died without a will) and it will then be divided among the heirs of the decedent.  However, if there is an earlier instrument (perhaps a will) in which you have also been disinherited, then prevailing in the trust contest only sets you up for the next contest, which is to challenge the will (presumably on the same grounds as you challenged the trust).

There are times when a will is challenged in California. There are many reason why this happens and the law sets forth the procedures to follow in making a challenge. Some reasons a will may be challenged include:

The will is fraudulent.

The will wasn’t properly executed.

What if, despite everyone’s good intentions, there is conflict after the death?

What if an heir or beneficiary or someone who thinks that they should have been made an heir or beneficiary complains?

What if a trustee never accounts to the beneficiaries and enriches himself at the expense of the others?

So there we have it … my client is listed on a deed with his two siblings and his mother as a joint tenants with right of survivorship (see California Civil Code §683 at http://www.leginfo.ca.gov). In such a case, the survivors are said to take title by operation of law.

The joint tenancy deed creates the rights in the property. By including a survivorship right, any other joint tenant alive when another joint tenant dies takes the deceased joint tenant’s share. In this case, there were four joint tenants. One died. Each joint tenant went from owning an undivided 25% interest in the real property to an undivided 1/3 interest in the real property.

The way the property is transferred when there has been a death is to record a document entitled “Affidavit Death of Joint Tenant”. A certified copy of the death certificate is attached to the Affidavit. Anyone can sign the Affidavit; so long as the joint tenant has really died (ergo the requirement for a certified copy of the death certificate to be recorded with the Affidavit). Upon recording, the other joint tenants own the property exclusively, no probate required by anyone (see California Probate Code §210 at http://www.leginfo.ca.gov)

By Estate Planning and Trust Litigation Attorney, Ted Hankin

As I stated in my last post, my client’s mother had a will when she died; in the will was a disinheritance clause that disinherited my client. In this post I will describe how those clauses are dealt with in California.

In general, a child of a dead parent is entitled to a share of the estate of that deceased parent if the child can prove that the failure of the dead parent to name the child as a beneficiary in that dead parent’s will or trust was due to the dead parent’s mistaken belief that the child was dead when the will or trust was signed or that the child was born after the death of the parent (California Probate Code §21622). In addition, spouses and children who came into the deceased person’s family after the execution of the will or trust are also entitled to receive shares of the estate. The California Probate Code Statutes that address this latter issue are found at California Probate Code §21610 (surviving spouse who married the deceased after the date of execution of the will or trust) and California Probate Code §21620 (child born or adopted after the date of the will or trust).

As I have said previously, greed is an incredible motivating factor in creating family discord; in this Orange County case, my client’s mother disinherited him in her will (California Probate Code §88). However, she had also, years before, transferred her home into co-ownership with her three children (including my client). In this case, the form of co-ownership was as “joint tenants with right of survivorship” (California Civil Code §683). The issue was whether the will would control who took the home (along with some other issues that I will address later).

A valid will in California can take several forms; one is called a “holographic” will (California Probate Code §6111). That is a will that is handwritten by the testator (i.e. the person who’s will it is), dated and signed by that person. In such a circumstance, the normal requirement for witnesses is waived and such a will can be submitted for probate (California Probate Code §8000 ) in the Superior Court.

Another form of will is the one that an attorney might prepare for a client. It is type-written, it sets forth various declarations concerning the testator and family relationships, and it instructs the person named as the personal representative (California Probate Code §58) of the testator as to what is to be done with the testator’s property after death. To be valid, the signing of the will by the testator must be witnessed (California Probate Code §6110) by at least two disinterested witnesses (California Probate Code §6112).